Practicing Patience: Family Law Matters in Times of Uncertainty

What do the coronavirus and a family law case have in common? This is not a new lawyer joke, but a legitimate conundrum facing many Americans today. The short answer is the “new normal” we all face: uncertainty.

The uncertainty of coronavirus is unfolding every day: new policies are instituted and discarded, projections and timelines are revised upwards or downwards with alarming speed, and major surveys have indicated roughly half of American households have either seen their employment related income significantly reduced or completely eliminated.

The uncertainty in a family law case ranges in everything from the time with our children, to our finances, to support payments, to our retirement plans, to our most prized possessions. These uncertainties generate stress and anxiety in even the most easy-going individuals.

While the impact of coronavirus has been huge, Americans still have family law related problems which need solutions. Many Americans find themselves in the unenviable and uncertain position of facing a worldwide health crisis and a major family transition at the same time.

Family Law In The Time Of Coronavirus
The practice of family law has not been immune to these uncertainties. Parenting plans have been improvised due to school dismissals, support orders have been adjusted based on new economic realities, homes sales have been delayed, and retirement accounts have been riding a rollercoaster. Negotiations which used to take place across the conference table are now taking place on computer screens. And Washington State courts (institutions not renowned for the swift adoption of change) are embracing electronic, telephonic, and video communication to try to approximate normal functioning. (The US Supreme Court agreed to telephonic hearing for the first time in the Court’s two-hundred-year history.)

Attorneys use their knowledge of legal precedent and courtroom experience to advise their clients on the best course of action and create realistic expectations. But unless there is a 125-year-old attorney who practiced through the 1918 Spanish Flu Pandemic, attorneys find themselves applying their significant wisdom to new circumstances the best they can in uncharted territory.

An Answer To Uncertainty…From Economics?
All this uncertainty can create a very understandable human urge: a desperate need for a feeling of certainty and normalcy. But this urge can cause us to make poor decisions or justify our thinking on shaky grounds. According to the book, Thinking Fast and Slow by Nobel prize winning behavioral economist Danny Kahneman, our brains can be thought of as two separate systems: System 1 and 2. System 1 allows us to make decisions almost automatically based on emotion and deeply engrained shortcuts. System 1 orders your coffee in the morning, pilots you on your commute to work, and helps you make split second decisions.

System 2 is deliberative, focused on avoiding hasty decisions, more rational, and can lead to better outcomes in the long run. System 2 helps us with long-term decisions and difficult problems. Ideally, you make major life decisions around marriage, children, and retirement using System 2.

How does this apply to coronavirus or a divorce case? Uncertainty can trigger our fight or flight response and a lot of System 1 thinking. In the case of coronavirus, this could mean ignoring social distancing protocols, not taking adequate precautions like handwashing, or returning too swiftly to “normal life.”

In family law cases, System 1 can make people so anxious for certainty and freedom from stress they may make decisions which harm the long-term best interests of their families. You may accept a bad deal today simply to have the certainty of having any deal. But is a swift journey to a bad destination better than a slow journey to a good one?

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